From the witness stand, more evidence on malpractice

Your article on the malpractice crisis [“Showdown,” Summer 2003] prompted me to think about the huge challenges our profession confronts in the face of rising insurance premiums and jury awards against physicians. During 22 years as an expert witness in otolaryngology malpractice cases, I have learned that lawsuits can arise from almost any doctor-patient interaction and that a jury’s determination of guilt or innocence is not always rational.

My first experience on the stand was in 1981 in a lawsuit filed against a physician who had treated a 20-year-old man for earache. Four days later, he came to a large, inner-city ER with stupor and seizures and died while under care. A post-mortem revealed high levels of heroin in his blood and a temporal lobe abscess, probably related to talc deposits in his heroin mixture. But the abscess was near the site of his recent ear infection, and the ENT was sued for alleged failure to diagnose a life-threatening situation.

After testifying on behalf of the physician, I was amazed to learn the case had been settled for an astounding $450,000. I was even more aghast to hear that all the jurors had thought the physician at fault and would have awarded $1.5 million to the plaintiff. The jury foreman told the judge that I had done a fine job but did not sway them.

Over the next 18 years I acted as an expert for the defense in more than 200 cases. During the past four years I have also done a small amount of plaintiff expert review, both to make me a more acceptable witness before the courts and in recognition that there are incidents of gross negligence in otolaryngology. It is true that HMOs and poor reimbursement have frustrated doctors, and it seems that these frustrations have contributed to worsened communication between referrers and specialists and between physicians and patients. The easiest way physicians can avoid lawsuits is to listen to patients and to be honest with them about expectations. The level of distrust patients have in their medical care is at an all-time high, and this is something physicians must address.

I chose to leave my practice of 25 years to two well-trained otolaryngologists who are 10 years and 21 years younger than I am. I have no clear solution that will help them cope with the dilemmas of our malpractice crisis. National health care has been a failure in Canada (patients who can afford the best care come to our country quickly). The huge multispecialty groups that are gobbling up solo practices would appear to insulate them from litigation, but consolidation has not decreased the number of lawsuits.

We must police ourselves and not allow attorneys to do it for us. The small number of physicians who are providing substandard care should be identified by their colleagues and not be allowed simply to relocate to another state to inflict harm on a new community.

I wish the next generation of physicians good luck. It seems that fewer of our graduates, products of the Yale System, are going into clinical practice these days. Our grandchildren will depend on this group for their medical care. Who will remain to upgrade this talent gap?